How Spousal Support Works in Same-Sex Divorces

In 2015, same-sex marriage was legalized federally in the United States, which meant that same-sex marriages were finally recognized in all states. This decision ensured that same-sex couples could receive the same benefits as heterosexual couples, including legal privileges such as medical insurance, tax benefits, and employee benefits for spouses.

Since the ruling, same-sex couples are navigating divorces for the first time as well. The process is the same in many ways, but there are some unique factors for same-sex couples considering a divorce.

What is spousal support, and how is it determined in a divorce?

Spousal support, also known as alimony, is a payment made from one spouse to another in the event of divorce within a marriage. The spousal support is typically awarded as part of a divorce settlement when one spouse can’t work or is unable to independently earn sufficient income to maintain a marital standard of living after a divorce.

In these cases, a court may award spousal support as a part of the divorce process. Spousal support is typically calculated taking into account a number of factors, including current income, earning potential, work or education experience of each spouse, custody of children, and more.

In a typical divorce, a judge will also look at the length of a marriage, whether there was a pre-nuptial agreement, and whether there was any shared property or assets between the couple.

Are there unique issues or considerations for same-sex divorces?

Although many aspects of divorce are the same for same-sex couples, there are some circumstances that could impact a same-sex spousal support agreement.

Same-sex couples may be more likely to have a less conventional situation when it comes to children. They may have adopted a child together or utilized a surrogate or an egg or sperm donor.

In these cases, the court may need to examine the situation to determine whether both parents have parental rights, and some have questioned whether primary custody typically could be awarded to a biological parent.

Determining the duration of a marriage can also be unique for same-sex marriages: This is because sometimes the relationship has lasted longer than is legally indicated, due to same-sex relationships only becoming formally recognized in the mid-2010s. A couple may have been in a domestic partnership or long-term relationship before that, but it wouldn’t necessarily be documented legally. In certain situations like this, courts may have the discretion to recognize longer relationships.

Shared property and assets can also be a question that comes up in divorce proceedings. There could be a question of how to properly divide assets if an asset was purchased before the marriage became recognized federally.

Since this is still a newer area of the law, many divorces are settled on a case-by-case basis. That’s why it can be important to make sure you have an experienced family law attorney to help you navigate the unique circumstances surrounding LGBTQ+ divorces.

To set up a consultation with one of Lonich Patton Ehrlich Policastri’s experienced California attorneys, click here or call (408) 553-0801.